All sides mum on fate of Helmut Oberlander

'What is the trap?' lawyer worries

Saturday July 28, 2001
Philip Jalsevac

The federal government is refusing to say anything about the timing or outcome of a cabinet decision on revoking the citizenship of Helmut Oberlander of Waterloo.

Oberlander's lawyer, Eric Hafemann, also declined to say whether he's been informed of any decision on the fate of Oberlander, who was an interpreter with a notorious Nazi death squad in the Second World War.

"I'm not saying anything one way or the other," said Hafemann of Kitchener. "What's going on here? Is somebody playing games with us?"

He expressed shock and dismay that Ottawa has put the onus on his client by saying it's up to him or his lawyer to comment on cabinet's decision.

"Somebody is jerking us around here," he said. "All of a sudden, they don't want to talk to the media . . . I'm thinking, what is the trap here?"

If a decision has been made, it's news to Oberlander, who was not available for comment yesterday. His wife, Margret said: "No, we don't know anything. We're waiting for things, thinking in the summertime, nothing's going to happen."

Government officials have freely commented on the Oberlander case ever since initiating a court action in 1995 which concluded when a judgment was rendered on Feb. 28, 2000.

However, now that Immigration Minister Elinor Caplan has recommended he be stripped of citizenship, Ottawa claims that revealing its decision would violate the Privacy Act.

"The decisions of cabinet are not public matters," said Huguette Shouldice, director of media relations in the Ministry of Citizenship and Immigration.

"There are certain things that might not seem logical, but it's the way the act is written."

Max Wolpert, acting deputy director of the war crimes unit in the Justice Department, had a different view of the matter. He said the unit grappled with the issue and, in the end, a government lawyer told them that exemptions in the Privacy Act allow disclosure of cabinet's decision in a case such as this.

"We believe that's a reasonable and valid interpretation of the privacy law," Wolpert said.

"We almost took it as a matter of common sense that we must be able to comment on these things. Otherwise, it would be bizarre."

He said the government did not face a decision about announcements in other cases because the individuals made it public first.

In a later interview, Wolpert appeared more cautious. When asked if cabinet had already made a decision on Oberlander, he would only say: "I can't comment."

In a Federal Court ruling, Justice Andrew MacKay found there was no evidence that Oberlander, 77, was involved in any war crimes. But the judge ruled the retired developer failed to disclose his membership in a German Einsatzkommando unit when he applied to come to Canada in the early 1950s.

That finding prompted Caplan's recommendation to strip him of citizenship as a first step to deportation.

Shouldice said any decision to revoke Oberlander's citizenship would eventually become public. There will be either a deportation hearing before the Immigration and Refugee Board or an application by Oberlander for a judicial review, both of which "puts it in the public domain."

Hafemann has already taken the initial steps in applying for a judicial review, pending the outcome of cabinet's decision. If it goes ahead, he said "it will deal with the conduct of the cabinet and the minister" as well as the findings of MacKay.

If successful, he maintains there are three possible remedies: the matter could be sent back to cabinet, a second court hearing could be ordered or Ottawa could simply reinstate his client's citizenship.

Wolpert agreed cabinet could be ordered to reconsider its decision but was unsure about another court hearing.

"This particular argument and set of circumstances has never been presented to the courts before, so it's difficult to speculate on what the result might be," the government lawyer said.